Law and You > Administrative Law > Writ of Habeas Corpus
There are five major types of writs viz. habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Each of them has a different meaning and different implications. In this article, we shall discuss the writ of habeas corpus.
Anything that is issued under authority is a writ. Orders, warrants, directions etc. issued under authority are examples of writs. Any person whose fundamental rights are violated can move the High Court (under article 226 of Indian constitution) or the Supreme Court (under article 32) and the court can issue direction or orders or writs. Thus the power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen.
In addition to the above, the Constitution also provides for the Parliament to confer on the Supreme Court power to issue writs, for purposes other than those mentioned above. Similarly, High Courts in India are also empowered to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose.
In India, both the Supreme Court and the High Court have been empowered with Writ Jurisdiction. Further, Parliament by law can extend power to issue writs to any other courts (including local courts) for local limits of the jurisdiction of such courts.
The writ of Habeas corpus is called a bulwark of individual liberty against arbitrary detention. “Habeas Corpus” is a Latin term which literally means “you may have the body.” Or “produce the body”. This remedy is available in all cases of unlawful detention and violation of personal liberty. The writ is issued to produce the person physically who has been detained, whether in prison or in private custody, before a court. The court then examines the reason for the detention and if there is no legal justification of his detention, he can be set free. Thus the onus of proof is on the detainer, and the detainer must show proof of authority to do the same. The Supreme Court under article 32 and High Courts under Article 226 of the Constitution can issue this writ.
A general rule of filing the petition is that a person whose right has been infringed must file a petition. But Habeas corpus is an exception and anybody on behalf of the detainee can file a petition. Habeas corpus writ is applicable to preventive detention also. This writ can be issued against both public authorities as well as individuals. Such a writ can be issued in the following example cases:
- When the person is detained and not produced before the magistrate within 24 hours
- When the person is arrested without any violation of the law.
- When a person is arrested under a law which is unconstitutional
- When detention is done to harm the person or is malafide.
Case Laws for Writ of Habeas Corpus:
In Hottentot Venus case (1810) 13 East 195, the rule for a writ of habeas corpus was granted upon the allegation that an ignorant and helpless foreigner has been brought to this country and exhibited against her consent by those who held her in their custody.
In Ranjit V. Pepsu, AIR. 1959 SC 843 case, the Court observed that the great value of the writ is that it enables immediate determination of the right of a person as to his freedom
In Bissewar Roy v. Emperor, 1925, AIR Cal 961 case, the Court held that The High Court is competent to issue a writ of habeas corpus for the production of a person illegally or improperly detained in public custody under executive orders
In Brown v. Vasquez, 952 F 2d 1164 case,James A Brown, a Texas prisoner (was awarded the death penalty), filed a complaint alleging violations of his constitutional rights stemming from two cell extractions. He named as defendants Sergeant Vasquez and Correctional Officer R. Hughes. The Court held that he was detained according to the procedure established by law and rejected his argument.
In Gopalan v. Government of India, AIR 1950 SCR 88 case, K. Gopalan was a communist leader who was detained in the Madras Jail under Preventive Detention Act, 1950 and he challenged his detention by stating that his civil liberty was being hampered as he had the right to equality of law. He argued that there was a violation of his Fundamental Rights which were Article 19, 21 and 22. He argued that the right to the movement was a fundamental right under article 19. Article 21 of the Indian Constitution: “No person shall be deprived of life or personal liberty except according to the procedure established by law”. The Supreme Court held that he was detained according to the procedure established by law and rejected his argument. The supreme court at that point of the time believed that each article was separate in the Indian constitution.
The Supreme Court also ruled that the earliest date with reference to which the legality of detention may be examined is the date on which the application for the same is made to the court. While in Talib Husain v. Jammu and Kashmir AIR. 1971 SC 62 case, the Court held that the legality of detention is to be considered as on the date of hearing.
In Prem Shankar Shukla Delhi Administration, AIR 1980 SC 1535 case, the detained prisoner sent a telegram to a judge and was treated as a Habeas Corpus Petition.
In Sheela Bharse v. State of Maharashtra AIR 1983 SC 378 case, the court relaxing the traditional doctrine of locus standi , expanded the scope of this writ by adjudging that it is not necessary that the detainee should be the petitioner. An interested party who has some connection with the case may also do so.
In Kanu Sanyal v. District Magistrate AIR 1973, SC 2684 case, the Court opined that while dealing with a petition for writ of habeas corpus, the court may examine the legality of the detention without requiring the person detained to be produced before it.
In Nilabati Behera v. State of Orissa, AIR 1993 SC 1960 case, the Orissa police detained the son of the petitioner for the purposes of interrogation & he could not be traced. Petitioner filed for the writ of habeas corpus. During the pendency of the petition, his dead body was found on railway track. The petitioner was awarded compensation of Rs. 1,50,000.
In Malkiat Singh v. State of U.P, AIR 1999 SC 1522 case, the son of a person was allegedly kept in illegal custody by the police officers. It was established that the son was killed in an encounter with the police. The court awarded Rs. 5,00,000 as compensation to the petitioner.
In Maneka Gandhi v. Union of India, AIR 1978 SC 597 case the scope of the writ of habeas corpus has considerably increased by virtue of the decision of the Supreme Court. One of the significant interpretation in this case is the discovery of inter connections between the three Articles- Article 14, 19 and 21. This a law which prescribes a procedure for depriving a person of “personal liberty” has to fulfill the requirements of Articles 14 and 19 also. The Court ruled that the mere existence of an enabling law was not enough to restrain personal liberty. Such a law must also be “just, fair and reasonable”.
In A.D.M. Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521 case, the petition was filed during the period of emergency and lot of people were detained without any formidable reason. In this case it was observed that the writ of Habeas Corpus is a process for securing the liberty of the subject by affording an effective means of immediate relief from unlawful or unjustifiable detention whether in prison or private custody. By it the High Court and the judges of that court at the instance of a subject aggrieved command the production of that subject and inquire into the cause of his imprisonment. If there is no legal justification for that detention, then the party is ordered to be released.
In Makhan Singh v. Punjab, AIR 1952 SC 27 case, the court opined that a detention may be unlawful if, inter alia, it is not in accordance with law, or the procedure established by law has not been strictly followed in detaining a person, or there is no valid authority of law to detain a person, or the law is invalid because it infringes a Fundamental Right, or the legislature in enacting the law exceeds, its limits.
In Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 and AIR 1980 SC 1579 cases, though the traditional function of the writ of habeas corpus has been to get the release of a person unlawfully detained or arrested, the Supreme Court has widened its scope by giving relief through the writ against the inhuman cruel treatment meted out to prisoners in jail. In Sunil Batra case – II the court permitted the use of the writ for protecting the various personal liberties to which the arrested persons or prisoners are entitled to under the law and the Constitution. The Court opined: “the dynamic role of judicial remedies … imparts to the habeas corpus writ a versatile vitality and operational utility that makes the healing presence of the law line up to its reputation as a bastion of liberty even within the secrecy of the hidden cell”.
In Icchu Devi v. Union of India, AIR 1980 SC 1981 case the court opined that in view of peculiar socio-economic conditions prevailing in this country the court has adopted liberal approach where large masses of people are poor, illiterate and ignorant and the access to the courts is not easy on account of lack of financial resources it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention. The burden of proof to justify detention has always been placed on the detaining authority.
In Gopalji V. Shree Chand, AIR1955 All 28 case, in exercise of its discretion, the court may refuse the petition if there is special alternative remedy available. But it is not a rule of the limitation of jurisdiction. The court may still grant relief in appropriate cases. In Talib Husain v. Jammu and Kashmir AIR 1971 SC 62 case, the Supreme Court has stated that the legality of detention to be considered as the date of the hearing.
Limitations of Habeas Corpus
- Judges receive a flood of habeas corpus petitions each year, including some that inmates prepare without the assistance of a lawyer, strict procedures govern which ones are allowed to proceed. Hence a writ of habeas corpus is not available in every situation.
- Inmates are generally barred from repetitively filing petitions about the same matter.
Conclusion:
The writ of Habeas corpus is issued to produce the person physically who has been detained, whether in prison or in private custody, before a court. The court then examines the reason for the detention and if there is no legal justification of his detention, he can be set free. Thus the onus of proof is on the detainer, and the detainer must show proof of authority to do the same. When an inmate is not happy with the conditions of confinement and severe mistreatment or unlawful prison policies He can file a civil rights complaint instead of a habeas corpus petition.